6-1-15; IL WC Reform May Not Be Happening But The Sky Isn’t Falling--Yet; Joint Employer Immunity Upheld by Matt Gorski; Important Petrillo Decision and more

Synopsis: As Of Now, The IL WC Legislative Reforms May Not Be Happening But For the IL WC Industry, The Sky Isn’t Falling Just Yet.


Editor’s comment: There is lots going on in Springfield and we have seen the IL House shoot down WC reforms and the IL Senate balk, then modify them and then shoot them down in committee. Both sides of the legislature are fighting with new Governor Rauner and he is fighting back in the media and with attack ads. As you read this, the IL General Assembly was supposed to have adjourned by now but they might be moving into extended session. The General Assembly plan appears to be to finish their business without consensus on a 2016 budget approved by Democrats that is more than $3 billion out of whack. Everyone assumes our leaders are going to borrow billions or raise taxes. There is no indication they might do what we want--enact ABBC—Across-the-Board-Budget-Cuts. Try to imagine Illinois legislators and administrators reaching the simple understanding we don’t have the money for 10% of what they are spending/wasting and having them


Ø  Consolidate 88 IL state agencies into 44?

Ø  Cut comically bloated and unquestionably redundant state agency budgets and staff?

Ø  Get rid of satellite offices that do virtually nothing of value to taxpayers?

Ø  Fully automate the tollways and stop spending $100M a year to have humans collect IL highway tolls?

Ø  Start using staffing employees for lots of administrative jobs so taxpayers don’t have to “double-pay” state workers with a salary while they are working for the state and a fake pension when they leave state employ so future taxpayers have to keep paying them more than half their retirement income for life?

Ø  Bring injured state workers back to light work and stop paying TTD for years/decades (or even their lifetimes) to workers that can and should be working?


Gov. Rauner says he won't sign any budget plan until Democrats pass some of his priorities to include WC reform. We will continue to watch and see where it ends. We hope our Governor and the legislature continue to work on real government pension reform which remains the mega-issue for our state.


Please Note the Proposed WC Reforms Aren’t Present in Indiana WC


We don’t feel the sky is falling if WC reforms aren’t enacted. IL WC legislative disappointments shouldn’t be too depressing for IL business. In our view, the four legislative amendments weren’t carefully considered or brought to the mainstream for everyone’s thoughts and input. The article we published from Dr. David Fletcher last week and this new article he just published Rauner's workers' comp plan is bad medicine for workers emphasize how “clunky” and uncertain these rapidly-created-and-presented WC reforms are.


Everyone keeps looking to the east at Indiana and their WC system appears to be nirvana for some because their system is sometimes so painfully low and limited in WC benefit levels. If IL WC is supposed to be “Like-Indiana” we caution Indiana worker’s comp has none of the facets of the proposed and currently failed IL WC legislative reforms. For example, they don’t have a “causation” or accident standard in their IN WC Act—they use common sense. The Indiana WC Board and their law doesn’t define “traveling employee” in their IN Act—Indiana hearing members (who are the equivalent of our Arbitrators) use prudence, rationality and sound judgment when they interpret their law in claims administration, hearings and appeals. How about letting our newly appointed IWCC do the same thing?


The Defense Team at KCB&A Wants Our IL WC Commission to Get the Chance to Demonstrate Common Sense in WC Claims


We have said this before and we will keep saying it. The current IL WC is in the process of “reforming itself” with better hearing officers and commissioners who are going to use common sense in reaching decisions. We assure our readers our team is closely watching every ruling from the IWCC and through those published rulings, the Arbitrators who are having their decisions appealed. We pray someone talk to the IL Appellate Court, WC Division and try to get them on board with reasonable cost-cutting.


We want to emphasize the defense team at KCB&A is going to closely watch, report and applaud when we see solid progress in stricter implementation of legal standards for accidents and lower PPD awards for folks smart enough to present claims properly to our hearing officers. If we see loose causation/accident decisions and goofy traveling employee awards, we will also let everyone in the industry know about it. And if you aren’t happy with your IL WC defense, hire us—we have one client who proudly advised us we helped him save $2M in IL WC costs last year with strong advice on his litigated and non-litigated claims. If you want to call him, send a reply.


As one example, we are advised some IL Arbitrators, particularly in downstate or “outstate” Illinois may be taking the Will County Forest Preserve District v. IWCC ruling as a basis to effectively “double” all shoulder permanency awards by changing traditional loss of use of the arm awards into loss of use of the body as a whole for the same permanency values. We didn’t read the decision to justify doubling permanency for shoulder injuries across the board. If that is happening, it is going to inflame the IL business community. Claimant Smothers in Will County Forest Preserve District only received 25% BAW for a truly messed up arm, oops we mean shoulder and a dramatic life change. Very few injured workers with operated shoulders undergo a dramatic life change—lots of men and woman recover unremarkably and have unremarkable permanency/impairment. If you are seeing this phenomenon, we want our readership to know it is out there, as it affects reserves, settlements and trial outcomes along with possible reform legislation. If you see it, please drop us a line with the case name/number.


In the same vein, the overall goal for IL WC is to get our benefits back to the middle of the United States and help our local economies compete with IN, WI, MI, IA and everywhere else in our country. The State of Oregon WC Premium Rankings come out in October 2016 or in sixteen months or so. The best place to track IWCC progress in making solid decisions on what is an accidental injury, what is related to such injuries and what injured workers should be receiving for permanency or impairment is right here. At least once a month, we are going to summarize what we see coming from our hearing officers. If you see outliers or odd rulings, please, please send them along.


We appreciate your thoughts and comments. Please post them on our award-winning blog.




Synopsis: New Ruling on When a Joint Employer is Protected From Civil Suit by the WC Exclusive Remedy Clause. Thoughts and Analysis by Matthew G. Gorski.


Editor’s comment: On April 23, 2015, a recent decision in the IL Second District Appellate Court was filed regarding the issues of joint employers and the WC exclusive remedy clause in Section 5 of the IL WC Act. In Kay v. Centegra Health System, our Appellate Court affirmed the trial court’s decision to deny Plaintiff’s motion for summary judgment and granted Defendant Centegra Health System’s motion for summary judgment.


Kay involved an employee of Northern Illinois Medical Center (NIMC) who tripped over a cable while working in a lab at NIMC. She sustained injuries and pursued a workers’ compensation claim against her employer, NIMC. Following trial and appeal to the IWCC, she successfully received substantial workers’ compensation benefits of 60% BAW under coverage from NIMC.


Plaintiff then pursued a personal injury action against Centegra for negligence revolving around this same occurrence. Centegra was a corporate affiliate and sole member of NIMC. Before the trial court, Centegra successfully won on summary judgment arguing they were a joint employer with NIMC because they helped pay for and were listed as “Employer” with NIMC on the workers’ compensation policy that issued benefits to Plaintiff/Petitioner Kay. Therefore, Centegra was immune from civil suit under the exclusive remedy clause.


The Appellate Court did not find Plaintiff’s argument compelling that Centegra was not listed as a party respondent or took any active part of any of the workers’ compensation proceedings. The Appellate Court found it more compelling Centegra helped pay for the WC benefits that were issued to Plaintiff in her WC claim.


For all those companies and their insurance brokers out there who are listed on a joint WC policy with another company, be aware you are helping pay for the WC benefits of employees of the joint company. This ruling is a must-read to insure you are protected in similar settings. This concept may provide immunity to you in a personal injury action by the same worker under Section 5 of the IL WC Act, as you technically have paid or contributed to benefits to the injured worker who sought and received IL WC benefits from a joint employer.


This article was researched and written by Matthew G. Gorski, JD. Matt can be reached 24/7/365 for questions about WC at mgorski@keefe-law.com.




Synopsis: Petrillo Expands in the Cook County Circuit Court—We Await Appeal to the Supreme Court.


Editor’s comment: All defense attorneys and adjusters/risk managers should beware of an unexpected ruling by Cook County Circuit Judge Kathy Flanagan, which appears to expand the rule in Petrillo v. Syntex Laboratories, Inc. and may create significant risk for defense counsels and their clients. If it isn’t changed on appeal, this ruling might impact WC law and practice at some point. In writing this article, we want to confirm we respectfully disagree with her thinking but we hold Judge Flanagan in the highest academic, scholarly and legal regard.


In Thompson v. University of Chicago Medical Center, Judge Flanagan ruled a defense attorney violated Petrillo by forwarding a copy of Plaintiff’s complaint to the attorney retained by a treating physician prior to the treaters deposition. Judge Flanagan entered substantial sanctions against Defendant. She further ruled defense counsel could not ask opinion questions of the witness, either at the deposition or at trial, and acted to strike many of the questions and answers from the witness’ deposition.

In Petrillo, the IL Appellate Court ruled defense counsel could not engage in ex parte communications with Plaintiff’s treating physician. The Appellate Court ruled “discussions between defense counsel and a plaintiff’s treating physicians should be pursuant to the rules of discovery only.” This unexpected decision caused numerous challenges about the scope of the new limitation and attacks by the defense bar on the rationale of the decision. The ostensible rationale of the Petrillo decision was a physician has a fiduciary and protected connection with their patient. Therefore, ex parte discussions or communications between the physician and defense counsel are felt to unfairly interfere with the patient’s rights and civil claims. We have often characterized this court-created protection as seeking to block the defense attorney from turning the treater into a “ventriloquist’s dummy” so they are somehow “tainted” by knowledge and supposedly say only what the defense wants them to say. We don’t feel doctors are so gullible and accepting they can’t talk to a defense attorney and still not be swayed or unduly influenced from their medical and scientific opinions.

Despite the Petrillo prohibition, the courts have also recognized a treating physician has the right to retain and consult with their own attorney, even though the physician may not be a party to the pending suit or before suit is filed. Thus, a physician has the right to seek the representation of counsel at any time they are to be deposed or testify, even if the physician is not a party. Presumably, the right to counsel includes the right for the physician’s personal counsel to be fully informed about Plaintiff’s claims, so their personal counsel can adequately “represent” the physician.

According to Judge Flanagan in Thompson this concept is not as clear. In Thompson, Plaintiff filed suit against the University of Chicago Medical Center (“UCMC”) and others alleging medical malpractice stemming from surgery performed by one of its surgeons. After written discovery of the parties was complete, the parties began depositions of treating physicians. Defense counsel for UCMC wanted to depose Dr. John Grayhack as he performed surgery on the minor Plaintiff similar to surgery performed at UCMC a year earlier. As he was concerned about being sued, Dr. Grayhack retained a personal attorney to represent him during the deposition. UCMC’s defense counsel obtained permission from Plaintiff’s attorney to send medical records to be used at the deposition to Dr. Grayhack’s attorney. When UCMC’s counsel sent the medical records, he also included health professionals’ reports attached to Plaintiff’s second amended complaint. Plaintiff’s counsel was copied on the correspondence to Dr. Grayhack. In our view, this means nothing was hidden.

When Plaintiff’s attorney learned defense counsel for UCMC forwarded the reviewing professionals’ reports to Dr. Grayhack’s attorney, he brought a motion to bar testimony at deposition. Judge Flanagan ruled any communication with the personal attorney for the physician which had not been specifically authorized by Plaintiff’s attorney was a violation of
Petrillo, and barred defense counsel from asking Dr. Grayhack any opinion questions, and further “deputized” Plaintiff’s counsel in advance of the deposition to instruct Dr. Grayhack not to answer any such questions if they were asked. During his deposition, Dr. Grayhack testified he had never seen the copy of Plaintiff’s complaint or the attached health professional reports.

Following the deposition, the court barred large parts of Dr. Grayhack’s testimony from being used at trial. UCMC filed a petition for a supervisory order to reverse Judge Flanagan’s ruling before the Illinois Supreme Court, and the IL legal community awaits a ruling on its petition.


We consider Judge Flanagan’s ruling to go far beyond the scope of Petrillo. We note UCMC’s defense counsel did not communicate directly with Dr. Grayhack. Next, the communication UCMC’s counsel had with the counsel for Dr. Grayhack was limited to forwarding medical records, as agreed by Plaintiff’s counsel and a copy of Plaintiff’s complaint and reviewing health professional reports. UCMC’s counsel was not sneaky about doing this--he copied counsel for Plaintiff on the correspondence. For that reason, we have no idea how it can be an “ex parte” communication—it is what we call an in parte communication. Further, Plaintiff’s complaint was a matter of public record, so Dr. Grayhack’s counsel could easily gone to the courthouse and obtained a copy of the complaint and reviewing healthcare practitioners’ reports. Finally, competent counsel representing a witness in a lawsuit such as this would attempt to analyze Plaintiff’s complaint and healthcare practitioners reports so they would be able to prepare their client for testimony.

We feel all Illinois trial defense counsels should be aware of this unusual ruling. We will continue to track progress on the final determination. We appreciate your thoughts and comments. Please post them on our award-winning blog.